New Victorian data sharing legislation set to impact public sector bodies

Victoria has become the third State in Australia to introduce data sharing legislation after the Victorian Data Sharing Act 2017 (Vic) (the Act) received royal assent in December 2017.

The Act aims to improve the sharing and use of data across the Victorian public sector by in two key ways: creating a clear framework for sharing data between Victorian public sector bodies for the purpose of informing policy making, service planning and design; and establishing a Chief Data Officer (CDO), who will lead the Victorian Centre for Data Insights (VCDI).

In this article, we consider the impact the Act may have on Victorian public sector bodies, the opportunities the Act creates, and how to prepare.

How will the Act facilitate the sharing and use of public sector data?

One of the key features of the Act is that it permits the ‘responsible officer’ of a public sector body (defined as the head of the body or a delegate) to share data with the Secretary of a Victorian government department and/or the CDO.

The Act facilitates this sharing by removing two barriers that have previously impeded sharing public sector data:

1. Compliance with requirements under Victoria’s privacy laws [1]

Previously, Victorian privacy laws impacted the ability to share personal information or health information (collectively referred to in the Act as ‘identifiable data’).

The Act now expressly authorises the sharing of such data between public sector bodies and with the CDO. This means that the Act can be relied on to permit the sharing of identifiable data in circumstances where, previously, such sharing may not have been allowed (for example, in circumstances where it was unclear if all individuals consented to the sharing of identifiable data). [2]

However, all other privacy obligations will continue to apply in relation to the handling and storage of data (including the obligation to take reasonable steps to protect the information from misuse, loss and unauthorised access).

Further, one important limitation on the handling of data under the Act (including the sharing and use of identifiable data) is that the handling must be for the purpose of informing government policy making, and for service planning and design [3]. In addition to this overarching purpose, the Act also requires that the recipient of ‘identifiable data’:

only use it (in its identifiable form) for the purpose of data integration (i.e. combining it with other data sets); [4]

after data integration, take reasonable steps to de-identify it so that no individual is reasonably identifiable in the data before analytics work is performed (defined in the Act as the examination and analysis of data for the purpose of drawing conclusions);

before disclosing the results of data analytics work, ensure that no individual can be reasonably identified in the results (this requirement is stricter than the requirement to de-identify at the data analytics phase); and

notify the Information Commissioner and/or Health Complaints Commissioner if they become aware that the Act, the Privacy and Data Protection Act 2014 (Vic) or the Health Records Act 2001 (Vic) have been, or are likely to have been breached. The recipient must also notify the public sector body who disclosed the data. [5]

2. Compliance with any applicable secrecy obligation imposed by legislation.

While previously, certain data may have been subject to secrecy obligations imposed by legislation, the Act authorises the sharing and use of data subject to a secrecy provision in some circumstances. However, it only permits public sector bodies to disclose data to the CDO (and not to another public sector body). [6]

The term ‘secrecy provision’ is confined to a provision of an act that prohibits the disclosure of information. The authorisation therefore does not apply to a public sector body disclosing information which is subject to a contractual obligation of confidentiality.

The CDO’s collection, holding, management and use of such data will not contravene a secrecy provision provided it is for the purpose of policy making, service planning and design. However, the CDO can only disclose ‘secret’ data if it has first received ministerial approval to the disclosure. [7] In addition, the party disclosing data subject to a secrecy provision must inform the CDO if it is aware that a secrecy provision applies to the data. [8]

Freedom of Information requests

The Act also provides an exception to the Freedom of Information Act 1982 (Vic) ( FOI Act ) for source documents received by a public sector body or the CDO, and to any integrated datasets that are created.

The CDO recommends that any public sector body receiving an FOI request should ask the applicant to instead make a request to the relevant public sector body that disclosed the information.

The establishment of the VCDI

Another key feature of the Act is that it establishes the VCDI, which will form part of the Department of Premier and Cabinet. The VCDI will be responsible for conducting data analytics projects that inform government policy making and service design.

For example, the New South Wales Data Analytics Centre is currently conducting 22 data analytics projects, including one on using data to understanding infrastructure needs to enable the government to develop models for future infrastructure investment. [9]

To facilitate data analytics, the Act grants the CDO power to request that the responsible officer of a ‘data sharing body’ or a ‘designated body’ provide data to the CDO. [10] The CDO may also request information about the types of data held by the relevant body. [11]

After receiving a request, ‘data sharing bodies’ (e.g. Victorian government departments, statutory agencies and the Victoria Police) must respond to the request by either providing the data or reasons for refusing the request within 10 business days [12]. On the other hand, ‘designated bodies’ (e.g. Victorian judicial bodies, tribunals, independent oversight bodies and Royal Commissions) may respond to the request, but are not required to do so. [13]

Despite this broad power to request data, the Act permits the responsible officer of the relevant body to choose to refuse the request for any reason. [14]

New offences under the Act

In order to strike a balance between data sharing and privacy considerations, the Act creates two offences for the unauthorised access, use or disclosure of data:

A general offence. This applies where a person makes an unauthorised access, use or disclosure of data that the person has obtained under the Act. The general offence has a penalty of 2 years imprisonment, a fine of 240 penalty units (approximately $A38,000 at the time of writing), or both.

A more serious offence. This applies where a person makes an unauthorised use, access or disclosure of data that the person has obtained under the Act, and the use, access or disclosure of data may endanger life or safety, assist in committing an offence, or impede justice. This offence carries a penalty of 5 years imprisonment, 600 penalty units (approximately $A95,000 at the time of writing), or both.

Next steps: Key considerations for public sector bodies

The Act came into force on 5 December 2017, meaning that public sector bodies can already rely on its data sharing benefits.

However, there are a number of procedural steps that public sector bodies may wish to consider to prepare for making and receiving data requests.

Conduct a data audit

The first step public sector bodies may wish to take is to review the types of data they hold. There are two benefits to this. Firstly, it will allow bodies to identify which data they can freely disclose, and which data may be subject to limitations (i.e. a secrecy provision or contractual confidentiality provision). Secondly, a data audit will allow the body to determine what information it wishes to acquire from another public sector body to assist with future policy making decisions.

Determine how best to respond to the CDO and other departments

Public sector bodies may also wish to consider their approach to requests for data.

Three questions to consider are:

Is the body required to respond to a request from the CDO? Only ‘data sharing bodies’ are required by the Act to comply, whereas ‘designated bodies’ may do so if they wish.

Does the head of the body wish to remain responsible for responding to requests for data, or should this responsibility be delegated to another ‘responsible officer’?

Are there any reasons for refusing to disclose data (e.g. disclosure of some types of data would prejudice legal proceedings or breach a contractual provision)?

Consider requesting data

Keeping in mind that the Act’s main purpose is to facilitate the sharing of data, public sector bodies may wish to consider whether there is data held by other public sector bodies that may assist its decision making on policy making, service planning and design.

Public sector bodies should keep in mind that if any shared data is ‘identifiable data’, the body will be responsible for ensuring that the data is de-identified before it is used for the purpose of data analytics, and that all data handling processes comply with both the Act and Victorian privacy laws.

We recommend that public sector bodies ensure that data obtained by a request under the Act is identified as such in its records (including identifying the disclosing body). This is so the body can ensure this data is handled in accordance with all the requirements of the Act.

Update your privacy documents

Finally, public sector bodies may wish to update their privacy policies and collection notices to ensure that data subjects are aware that the body may share data with the CDO and other government departments in accordance with the Act

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.